Johnson v. Martin

41 App. D.C. 502, 1914 U.S. App. LEXIS 2205

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 2, 1914
• Docket: No. 879
• Status: Published

Opinion

Mr. Justice Van Orsdel

delivered the opinion of the Court:

All of the tribunals below found that appellee in 1905 constructed and successfully operated a machine illustrated in “Martin’s Exhibit Drawing of Eirst Martin Machine,” and that finding is not contested here. It is contended, however,- that this machine does not disclose “means whereby the cartons are fed to the machine in a plurality of streams, and means for alternately conveying the cartons one at a time from said streams to the conveyor of the folding and sealing machine,” as required by the issue. The tribunals below were unanimous in finding against this contention, and with them we agree. Appellee’s first machine, on which he relies for a reduction to practice, shows the cartons fed forward in a plurality of streams until a reciprocating member forms them into a single stream on a belt, which carries them to another conveyor, from which they' are delivered by a swinging arm to a conveyor, which carries them into engagement with the folding and sealing devices. It will thus be seen that appellee’s first machine shows “means for alternately conveying the cartons one at a time from said streams to the conveyor of the folding and sealing machine,” if the word “means” is to be given a construction broad enough to include the several elements there required to 'convey' the cartons from the several streams to the folding and sealing machine.

There is no limitation in the claims that the means convey the cartons directly from the several streams to the folding and sealing machine. The word “means” is used in its generic sense. When thus used, its definition has been settled by this court in the case of Lecroix v. Tyberg, 33 App. D. C. 586, where the construction of the words “means for transferring the bunches from the mold to the wrapping mechanism” was in issue. It appeared in that case that Tyberg’s “means” consisted of three elements, — “a rocking needle for transferring bunches from the mold, a traveling chain support to receive the bunches from the needle bar and transport them to a point adjacent the cigar-wrapping machine, and a horizontal swinging arm provided with grippers to lift the bunches from the chain support and transfer them to the wrapper-applying machine.” The “means” described by Lecroix consisted of swinging arms which lifted the bunches from the mold and transferred them directly to the wrapping mechanism. It was there contended that the machines of the contesting parties were substantially different, but the court said: “We agree with the Commissioner that the words 'means for transferring the bunches from the mold to the wrapping mechanism,’ as used in counts 1, 2, and 3, are applicable alike to the transferring device of each' party. The term 'means,’ as used in this connection, must be held to be a generic term, and hence applicable to each species of transferring device. It follows that these counts arcs readable on Tyberg’s structure.”

It is also contended by appellant that the issue should be given a strict construction because appellee’s first machine had been in public use for more than two years prior to his application for patent. The question of priority is the only one with which we are concerned in this proceeding, and the question of a statutory bar to appellee’s right to a patent on these claims is not in issue here. Lecroix v. Tyberg, supra; Burson v. Vogel, 29 App. D. C. 388.

The decision of the Commissioner of Patents is affirmed, and the clerk is directed to certify these proceedings as by law , required. Affirmed.

A petition by the appellant for a rehearing was overruled March 3, 1914.